Nice New Toyotas

Toyota Motor Corporation’s product liability for unintended acceleration and braking problems, which has reportedly led to 10 million recalls and counting, would eventually be found to be manufacturing and/or design safety defects.

From the reported accounts of several accidents involving sudden acceleration and brake failure, the safety defects may, hopefully for Toyota, be limited to accelerator-pedal trapping floor mats, sticking accelerator pedals, and inconsistent anti-lock brake systems (ABS), and not include defective electronic throttle control systems (ETCS) or stirring systems, on Corollas, Camrys, and other Toyota models.

Toyota’s global recalls have included Prius and Lexus hybrids, which indicate that the safety defects related to unintended acceleration and braking problems are systemic in nature.

Indeed, Toyota dealers nationwide have reportedly begun fixing accelerator pedals on recalled vehicles by installing a precision-cut reinforcement bar into the accelerator pedal assembly to eliminate the excess friction that has caused pedals to stick on occasions.

Dealers will also place reconfigured accelerator pedals and newly-designed floor mats on affected models to remedy floor mat pedal entrapment, and remedy the inconsistent brake feel of the anti-lock system (ABS) in 2010 Prious.

Moreover, Toyota will install a brake override system that cuts the engine on simultaneous application of accelerator and brake pedals. Even as Toyota is implementing the brake override system, it asserts that it “is confident that no defect exists in the electronic control unit (ECU).”

Manufacturing Versus Design Defects:

A. Manufacturing Defects:

The manufacturing process of a product consists of the formation, assembly, adjustment, combination, or processing of raw materials or ingredients according to the product design, per CCH, I Products Liability Reporter, Section 4785.
Thus, manufacturing defects may arise from improper formation, faulty assembly or adjustment, incorrect composition, or defective raw materials or component parts.

Toyota has identified the manufacturing defect that causes sticking accelerators as the: “friction device that includes a ’shoe’ that rubs against an adjoining surface during normal pedal operation. Due to the “materials used, wear and environmental conditions,” these surfaces may begin to stick…. In some cases, friction could increase to a point… that the pedal sticks, leaving the throttle potentially open.”

In one of the early Firestone cases filed by this Author in August 1999, with the Superior Court of Los Angeles County, the left rear tire of the injured family’s Ford Explorer, a 1994 Firestone Radial ATX, had its tread along with one steel ply coming off completely all the way around the tire.

It caused the 1995 Ford Explorer running at 65 miles per hour on US 101 Freeway in Solvang County, Santa Barbara, California to run out of control and overturn, injuring a couple and their two minor daughters in a nonfatal accident in August 1998.

Bridgestone/Firestone Inc., settled before trial based on the expert report of Transamerican Consultant Engineers, Inc., obtained by this Author, which concluded that: “(T)he cause of the tread separation was due to a poor bond between the steel plies due to failure of the brass plating on the wires to completely fuse with the sulfur in the rubber during the vulcanizing process.”

That case exemplified the manufacturing defect of incorrect composition or defective bonding materials.

B. Design Defects:

The designing of a product consists of the selection of materials and their intended construction as to size, shape, inclusion, and arrangement of component parts, per CCH, I Products Liability Reporter, Section 4745.

Thus, defects in design may take the forms of inadequacies in the plans or specifications, in the choice of materials for the product composition, or in the absence of safety devices or features.

Toyota’s installation of a precision-cut reinforcement bar into the accelerator pedal assembly is a design safety device to remedy sudden acceleration. And its reconfiguration of the shape of the accelerator pedal and newly-designed floor mats are likewise design remedies to avoid floor mat pedal entrapment. Moreover, the installation of a brake override system is another design safety feature.

The placement of fuel tanks close to the rear bumpers in Ford’s Pintos in the 1970’s, which in a 1978 case in Orange County, California, caused the gas tank to explode in a rear-end collision, exemplified the design defect of inadequate plans or specifications.

Defective vehicle design was also at issue in the January 2002 roll-overs of a 1997 Ford Explorer SUV, which left a mother of two paralyzed from the waist down when the Explorer’s roof caved in.

The San Diego jury found that Ford knew that the Explorer had design defects that increased its propensity to tip over, as well as its inadequate roof strength. The U.S. Supreme Court let stand the $82.6 million award to the paralyzed California women, which included $55 million in punitive damages.

Conclusion:

A vehicle recall is an admission of a defect or defects, whether manufacturing or design or both. Hopefully, the recall of Toyota vehicles would cure the defects. And Toyota would be liable only for the reduction in value and loss of use of the vehicle while being fixed. Otherwise, it may be liable also for punitive damages if it knew the defects all along.

For accident cases resulting in bodily injuries or deaths for sudden acceleration and failure of the brakes, the plaintiffs need to prove by a preponderance of the evidence either manufacturing or design or both defects through reconstruction and automotive experts.

Toyota Motor Corporation through their own experts will need to prove lack of defects or lack of causation for the injuries or death, that is, the loss of control of the Toyota vehicle was due to driver error. The jury and the appeal courts in case of appeals from the jury award or defense verdict will decide the outcome.

Our adversarial system of deciding legal disputes in courts would hopefully do justice to whom it is due.

(The Author, Roman P. Mosqueda, is the holder of a 1979 Doctor of Science of Law (S.J.D.) degree from The University of Michigan Law School, with a published doctoral dissertation on comparative product liability. He practices product liability, among other areas of law, in Southern California, based in Los Angeles.

For comments please email to rpm_law@yahoo.com or call his office at (213) 252-9481. Please feel free to visit http://www.mosquedalaw.com to know more about the Author’s practice.

This article is not meant to give legal advice, but is for information only. The reader with specific product liability issues is well-advised to seek the services of a competent product liability attorney.)

Atty Roman P. Mosqueda

The problems first arrived with a single, car crash that took place in southern California last August. Toyota has this week called two separate recalls covering over 7.5 million cars! Now they are forced to stop all sales of eight of Toyota’s best selling models which will cost the company and its dealers a minimum of $54 million a day in lost sales. Toyota is known for its great quality, and wonderful reputation. How did the worlds largest and most profitable automaker find itself at the center of the biggest recall since the Firestone Tire recall in 2000.

The first recall, covers 4.2 million Toyota and Lexus models, owners are to remove the floor mats from their cars and place them in the trunk, or to have the floor mats zip-tied in place by a Toyota dealer. The recall covers many models and year including:

* 2005 to 2010 Avalon
* 2007 to 2010 Camry (not including Camry Hybrid)
* 2008 to 2010 Highlander
* 2009 to 2010 Matrix
* 2004 to 2009 Prius
* 2005 to 2010 Tacoma
* 2007 to 2010 Tundra
* 2009 to 2010 Venza
* 2007 to 2010 Lexus ES350
* 2006 to 2010 Lexus IS250
* 2005 to 2010 Lexus IS350
* 2009 to 2010 Pontiac Vibe

The second recall covers 2.3 million cars which together account for over 50% of Toyota’s sales. Affected models include:

* 2005 to 2010 Avalon
* 2007 to 2010 Camry
* 2009 to 2010 Corolla
* 2010 Highlander
* 2009 to 2010 Matrix
* 2009 to 2010 Rav4
* 2008 to 2010 Sequoia
* 2008 to 2010 Tundra

In addition, all 2009 and 2010 Pontiac Vibes, which are mechanically identical to the Matrix and built in the same plant, are also affected.

You may be asking yourself this question lately especially in light of the news that several Toyota models have been recalled while a Lexus model failed an important Consumer Reports safety test. These are some of the worst days in the history of Toyota, challenging times for the world’s largest auto maker.

But should you avoid Toyota altogether? As editor for Auto Trends and The Auto Writer and as a columnist for a pair of regional print publications, your concern is something I hear of occasionally. Editors are always concerned about covering a potentially unsafe vehicle while some readers wonder if they should avoid Toyota completely.

It can be easy to make your decision based solely on what you’re hearing in the news. Some of what has come out about Toyota is valid, but opportunists have gotten in their bashes too. You need facts and an objective voice, something I will try to provide as someone who doesn’t have any “skin in this game.”

Fact #1 – Toyota is not as reliable as they once were. This apparently is true as the company grew so fast that they put aside some of the warning signs indicating certain problems were surfacing. Reports at this time are unclear, but we think Toyota may have known that their accelerator pedals were a problem as far back as 2006. While all manufacturers have to deal with quality issues at some level, how they handle problems is telling: are they coming clean or burying the truth?

Fact #2 – Toyota quality remains high overall. Yes, absolutely. Many consumer surveys and most automotive analysts agree that when it comes to the quality and value of Toyota vehicles, Toyota is at or near the top. Honda, Ford, Hyundai and Buick are among the brands which have fared well in recent years, while Toyota continues to score well across its Toyota, Lexus and Scion lines.

Fact #3 – Some of the criticism appears exaggerated. Unfortunately, this appears to be so. Much has happened over the past few months to cause worry for current owners and for those shopping for a new Toyota. Stories of a runaway Lexus flying off the road and killing all four occupants in California and news that a certain Toyota Prius had trouble stopping on the expressway is national news. The first story is valid, the second is doubtful. And, some members of the press are smelling blood and seem to be looking for a Pulitzer Prize. In any case, reading up on these stories can tell you much including whether claims are valid or are being trumped up.

Fact #4 – Customer sales remain strong, so Toyota will still be around. Toyota’s bad news is good news for buyers who aren’t worried that their accelerator pedal is going to get stuck, their SUV flip over or some other problem surface. To win back customers while assuring current, but nervous owners that they’re here for the long haul, the automaker is offering unprecedented discounts and financing to win your business. In March 2010 that translated to some of the strongest sales for Toyota as customers saw a bargain and decided to make their purchase.

My personal disappointment with Toyota parallels that of what some other people in this industry are experiencing: we long believed Toyota represented some of the best cars in the industry, even buying their products. But we’ve also discovered an insular culture, one that has greedily jumped to the top of the industry while stupidly ignoring problems, some quite serious.

Perhaps the one question to ask yourself is this one: Can I trust Toyota to provide me with a safe and reliable vehicle, one whose value has not been compromised by the latest recall or rumor? If you feel satisfied with your answer, then you’ll know what direction to take.

Matthew C. Keegan